Conversely,
a proper ruling under the “well regulated Militia” approach would result
in recognition of an absolute personal right for almost all common Americans
to keep certain types of firearms: that is, a right which is not subject
to (is immune from) any regulation—“reasonable,” “compelling,” or otherwise—because
“the right of the people to keep and bear Arms” is actually the consequence
of an individual constitutional duty to do so. And no government,
National, State, or Local, can have any power whatsoever—under color
of some supposedly “compelling interest” or any other excuse—to prohibit
or inhibit the fulfillment of a constitutional duty that is “necessary
to the security of a free State”, upon the continued existence of which
the very legitimacy of that government depends. (This conclusion would
hold even if “the right of the people to keep and bear Arms” were largely
an “individual right,” provided that it could serve as an instrument
in aid of “[a] well regulated Militia”—that is, provided the Second
Amendment’s two clauses were construed as mutually supporting, rather
than as separate from and independent of one another.)

Indeed,
because the Second Amendment declares—and everyone in the United States,
public official and private citizen alike, is bound by its declaration—that
“[a] well regulated Militia” is “necessary to the security of a free
State”, the government’s most “compelling interest” must be the preservation
of “well regulated Militia”. For this very purpose, the Second Amendment
commands that “the right of the people to keep and bear Arms, shall
not be infringed”. Therefore, the government can have no “compelling”—or,
for that matter, even any legitimate “interest”—in disarming common
Americans, but instead must have a “compelling” interest in allowing
them to arm themselves. Where the Second Amendment is concerned, the
“compelling governmental interest” theory is unidirectional. Once again,
though, this chain of reasoning depends upon construing the Second Amendment’s
two clauses as inextricable.

A
pragmatist should also consider that, although an “individual right”
“to keep and bear Arms” would to some degree support “[a] well regulated
Militia”, because some individuals would choose to possess firearms
useful for Militia service, nonetheless the Militia approach (if properly
enacted into law) would guarantee that almost every able-bodied man
and woman in the United States, from sixteen to sixty years of age,
and not a conscientious objector, would be suitably armed. Thus, the
Militia approach would in fact provide more of a practical “individual
right”, in terms of the number of people actually in possession of firearms
in their own homes and on the streets (and trained to use those firearms
safely and effectively), than would the “individual-right theory”. As
for individuals less than sixteen years of age, no prudent person doubts
that their access to and use of firearms are properly subject to supervision,
in the first instance by their parents or guardians, and where that
fails by public authority. Individuals more than sixty years old would
almost all have served in the Militia in earlier years, and would always
be allowed to volunteer for Militia service thereafter, and on the basis
of that previous service and present possibility alone would be entitled
to an absolute right to possess firearms.

In
addition, patriots should remember that only the Militia approach
can serve the vital purpose of the Second Amendment, which is not
to promote hunting, target shooting, or other “sporting” or “recreational”
uses of firearms (although the Militia approach would protect these
activities too), but instead is to arm “the people” so as to provide
“the security of a free State” through “well regulated Militia.” By
itself, an “individual right” to possess firearms cannot protect this
country against the imposition of a police state by rogue public officials.
For what good will arms in individuals’ hands prove to be against large-scale
para-militarized police forces and other instruments of oppression,
without thoroughgoing organization of those individuals and legal authority
for their collective action in defense of their liberties? The Militia
are the constitutional institutions that provide both—which is why the
Second Amendment declares them to be “necessary to,” not simply
useful let alone optional for, “the security of a free State.”

Assume,
though, for purposes of argument, that somehow or other the Supreme
Court stumbles into a decision favorable to Heller on the “individual-right
theory”. What can one expect will be gained? Perhaps not much more than
Americans already have now. For, in all likelihood, a favorable decision
will be very narrow.

A
basic rule of constitutional adjudication is that the Supreme Court
ought not to write an opinion that is broader than the legal issues
and the facts actually before it in the case under consideration. Anything
beyond that amounts to an “advisory opinion”, which lies outside the
Court’s constitutional jurisdiction. If the decision is in favor of
Heller, it will be to some degree consistent with the Constitution.
If to some degree consistent with the Constitution, it will be written
by one of the Justices who is at least a lukewarm constitutionalist.
And even a lukewarm constitutionalist will respect the rule against
“advisory opinions”.

The
facts in Heller’s case are peculiarly susceptible to a narrow ruling,
too. First, Heller himself is a “licensed armed protection officer”
who works for a private security company. So he has been investigated
and trained, and is supervised, far in excess of an ordinary citizen.
A majority of Justices might very well consider this a basis for voiding
the D.C. gun law as an “unreasonable regulation”, or as serving no “compelling
governmental interest”—but only as against Heller and others similarly
situated, not as against just any ordinary citizen. Second, Heller
is asserting a right to keep a working firearm and ammunition in
his home for purposes of self-protection there. A majority of Justices
might accept this particularized, localized purpose, without opining
on any other possible purposes, or especially other venues, for private
citizens’ possession of firearms. Third, Heller desires to keep a medium-caliber
centerfire pistol in his home. A majority of Justices might agree
that this is an “appropriate” firearm for self-defense, and that therefore
Heller’s possession of it is protected by the Second Amendment, while
at the same time denying that other types of firearms—such as so-called
“assault rifles”, big-bore “sniper rifles”, or short-barreled shotguns—are
embraced by that constitutional guarantee. Any good decision on the
second and third of these points would doubtlessly be welcomed by all
patriots. Yet such a decision might be so tailored to the extremism
of the District’s law as to have little applicability in other jurisdictions,
where “gun control” is less draconian.

Even
if the Court rules that an ordinary citizen has a constitutional right
to keep some type of handgun or other firearm “appropriate” for self-protection
in his home, it may not explain how a resident of the District of Columbia
(or any other large city with strict “gun-control” ordinances) who does
not already have such a firearm in his home can arrange to acquire
one, particularly if the District prohibits or stringently regulates
the retail sale or other transfer of firearms within its territory.
What good is a “right” for most people to possess firearms in their
homes without a “right” to obtain firearms in the first place, typically
through the channels of private commerce? And before anyone concludes
that such a “catch-22” decision is unlikely, he should compare Stanley
v. Georgia, 394 U.S. 557 (1969), with United States v. Reidel,
402 U.S. 351 (1971). If that is the result, rather than settling matters
once and for all Heller will simply spawn further complex, contentious,
and costly litigation in the lower courts.

Besides
all this, the overriding fact in Heller is blatantly political
and propagandistic in nature: namely, that the District of Columbia
is the capital of the United States—and if not the “murder capital”
of this country today, certainly a perennial challenger for that dubious
title. The Justices will naturally try to avoid any decision that they
imagine might exacerbate, or even might simply appear to exacerbate,
this situation. Also, the District is a metropolis that follows the
myopic pattern of such other large cities as Boston, New York, Chicago,
and so on, in having strict “gun control”, as well as high rates of
violent crime. Unable to fathom (or unwilling openly to admit on the
pages of the United States Reports) that “gun control” actually
stimulates and facilitates crime by empowering criminals as against
their victims, the Justices will doubtlessly try to avoid any decision
that might throw into doubt the rationality and legitimacy of the “gun-control”
regimes in all of those cities. What, after all, would Mayor Bloomberg
say? The strange reality of the present era is that jurists who do not
seem to lose sleep over being directly responsible for tens of millions
of premeditated homicides-for-hire by abortion undoubtedly would cringe
in the face of editorials in the Washington Post or the New
York Times, claiming on the basis of the post hoc ergo propter
hoc fallacy that, as a result of some decision barely favoring the
Second Amendment, narco-gangster killings, drive-by shootings, or massacres
perpetrated in “gun-free” schools and shopping malls by drugged-up zombies
had multiplied in those cities. And what if a series of sensational
“gun crimes” coincidentally occurs just before the Supreme Court actually
decides Heller?

How
broad, or how narrow, a favorable decision in Heller might be
also depends upon what sort of “individual right” a majority of the
Justices deigns to recognize. To be sure, a very clear-cut, specific
“right of the people to keep and bear Arms”—immune from “infringement”
by “reasonable regulations” or “compelling governmental interests”—could
be derived from the dozens and dozens of pre-constitutional Militia
statutes in the Colonies and independent States, were the “Militia”
interpretation the basis for decision: namely,

*Who
enjoys the right—essentially every common American above the
age of sixteen years (thus defining “the people.”)

*What
“Arms” does the right encompass—every type of firearm that could
have a use with respect to Militia service, including “assault rifles,”
“sniper rifles,” “combat shotguns,” and other small arms of contemporary
regular light infantry (thus defining “Arms.”)

*Where
and how can the right be exercised—by personal acquisition of “Arms”
in the free market, and personal possession of “Arms” in every American’s
home and on the streets (thus defining “keep and bear.”)

*When
can the government prohibit such behavior—never (thus properly
defining a “right,” because it cannot be “infringed.”)

In
the absence of the “Militia interpretation” and reliance on the pre-constitutional
Militia statutes, though, the Justices will essentially have to make
up “the right of the people to keep and bear Arms” as they go along—on
the basis of historical speculation, lawyers’ arguments, and the Justices’
own political and sociological prejudices that hide behind the labels
“reasonable regulation” and “compelling governmental interest”.
As with anything ersatz, although their concoction may perhaps suffice
for the immediate purpose, it will nonetheless not be the real thing,
and therefore will prove not good enough for the long haul.

But
one superficially read in constitutional history may object: Did not
the Founding Fathers speak, again and again, to the meaning of “the
right of the people to keep and bear Arms”? Certainly that is the technique
often employed in naive studies of the Second Amendment: namely, marshaling
statements attributed to James Madison, Thomas Jefferson, George Mason,
and even Alexander Hamilton, in order to establish legal principles
by reference, deference, and adherence to personalities. Now, these
statements may themselves be facts—in the sense that such and so is
what some Founder actually said or wrote. But their substance consists,
not necessarily of historical or legal truths, but only of the opinions
of the men who made them—even if those men were in high public office
at the time. Fundamentally, this is why so-called “legislative history”
such as records of legislative debates were rightly considered incompetent
evidence during the founding era and for many decades thereafter: “Doubtless,
the intention of the Congress which framed and of the States which adopted
[a constitutional] Amendment must be sought in the words of the Amendment;
and the debates in Congress are not admissible as evidence to control
the meaning of those words.” United States v. Wong Kim Ark, 169
U.S. 649, 698 (1898). (Today, “legislative history” is often employed
by lawyers and judges for the purpose of expanding or contracting laws
beyond their actual terms—and legislative debates are often intentionally
larded with tendentious statements in aid of this subversive procedure,
either by legislators who opposed a law and want to see it constricted,
or by legislators who supported a broader version of a law than was
actually enacted, or both.)

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In
addition, where the Constitution “asserts a certain right, or lays down
a certain principle of law * * * , it speaks for the entire people.”
Davis v. Burke, 179 U.S. 399, 403 (1900). Therefore, its meaning
must be derived from its own words, as construed according to then-contemporary
rules of interpretation upon which “the entire people” —that is, average
Americans—would have relied, not just from the opinions of a handful
of even the most illustrious statesmen of that time. For part three
click below.

Edwin Vieira, Jr., holds four degrees from Harvard:
A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts
and Sciences), and J.D. (Harvard Law School).

For more than thirty years he has
practiced law, with emphasis on constitutional issues. In the Supreme
Court of the United States he successfully argued or briefed the cases
leading to the landmark decisions Abood v. Detroit Board of Education,
Chicago Teachers Union v. Hudson, and Communications Workers of America
v. Beck, which established constitutional and statutory limitations on
the uses to which labor unions, in both the private and the public sectors,
may apply fees extracted from nonunion workers as a condition of their
employment.

He has written numerous monographs
and articles in scholarly journals, and lectured throughout the county.
His most recent work on money and banking is the two-volume Pieces
of Eight: The Monetary Powers and Disabilities of the United States
Constitution (2002), the most comprehensive study in existence of American
monetary law and history viewed from a constitutional perspective. www.piecesofeight.us

He is also the co-author (under
a nom de plume) of the political novel CRA$HMAKER:
A Federal Affaire (2000), a not-so-fictional story of an engineered crash
of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com

I
fully appreciate that, whichever Establishment candidate assumes office
as President in 2009, the composition of the Supreme Court will almost
surely change for the worse in coming years—and that therefore, if a major
Second-Amendment case must be brought to the Court, now is probably a
more propitious time than hereafter.